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Infringement of farmers’ rights

Intellectual property rights over plant varieties give holders a monopoly on the commercialisation of the seed. From an economic perspective, this is bad. States should only introduce monopolies if the anticipated benefit – innovation – is greater than the damage caused. At some point, protection starts to thwart development.
[ By François Meienberg ]

The prevailing plant protection system fails to facilitate maximum innovation. As a matter of fact, the current over-regulation is rather obstructive. This is illustrated by an initiative of the Dutch breeders’ association Plantum whose members hold 43 % of the European plant variety rights. Plantum demands full integration of the breeders’ privilege – which allows breeders to use plant genetic resources of protected varieties – into patent legislation. As a consequence, the commercialisation of cultivars bred by means of patented plants would no longer be restricted. This reform would thus weaken the rights of patent holders.

Patents constrain the access to genetic resources for breeding and ensuing commercialisation. This obstructs innovation. Even breeders for whom the protection system was designed consider it inefficient – which ought to be a wake-up call for the legislators.

Another example is the opposition of the Swiss Fruit Union (Schweizerischer Obstverband) to the introduction of the new Plant Variety Rights Law in Switzerland in line with the 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV). The Fruit Union asserted that fruit trees can only adapt to local conditions if they are reproduced on the horticulturalist’s private property; this is how new varieties used to be developed. Unfortunately, these arguments were rejected by the Swiss parliament.

Once the right level of protection for maximum innovation is found, the protection system should also take account of other important objectives, including
– compliance with human rights (in particular the right to food),
– promotion of the domestic economy,
– promotion of national research,
– protection and promotion of biodiversity (implementation of the FAO’s Plant Treaty and the UN Convention on Biodiversity),
– no oligopolies (today, three companies control 47 % of the seed market), as well as
– easy access to seed and food for farmers, breeders and consumers.

Restricted options

Protection of plant varieties plays a role in the breeding and development of new varieties. According to TRIPS, the WTO agreement on Trade Related Property Rights, every country has to provide such protection – either by means of patents, a system of its own design (“sui generis”) or a combination of both. Though every nation is free to establish a system of its own, bilateral trade agreements are increasingly forcing developing countries to ratify the UPOV convention of 1991, thus limiting their freedom. Governments have to assess what serves their countries best: accession to UPOV or the development of a suis generis system? India, for instance, opted for a sui generis law.

The UN Special Rapporteur on the Right to Food, Olivier De Schutter, recommends that every country develop a system of its own, based on its specific needs – thus equally strengthening farmers’ rights and biodiversity. It is widely accepted that only nationally adapted systems of plant variety protection make sense in practice. As early as 1999, IPGRI – the International Plant Genetic Resources Institute, which has since been re-named Bioversity International – stated in a report that “there is no ideal and unique (sui generis) system covering all needs.”

In 2002, the much-noted report by the UK government’s Commission on Intellectual Property Rights recommended that “developing countries should [thus] consider basing their PVP (plant-variety protection) legislation on a realistic appreciation of how it could benefit their agricultural development and food security, taking account also of agriculture’s role in generating exports, foreign exchange and employment. In particular they need to consider possible modifications to the UPOV model to adapt it to their circumstances.”

Disadvantages for developing countries

Especially for developing countries, UPOV system has several disadvantages, however. These include:
– States willing to join UPOV have to provide laws to protect plant varieties according to the 1991 Act of the UPOV Convention. Adaptation to national requirements is extremely inflexible (see box).
– Obviously, UPOV 1991 does not correspond to the needs of the developing countries. Out of 15 developing countries to which the 1978 Act applies due to early accession, not a single one has ratified the Act of 1991. This group is made up of 12 Latin American plus China, Kenya and South Africa. It is evident that
UPOV 1978 serves their needs better. Ratification in developing countries that joined the UPOV later was partly made compulsory by trade agreements with OECD countries.
– With huge effort, India has adapted its legislation and introduced a plant variety protection law that respects both farmers’ and breeders’ rights (see next essay by Suman Sahai, p. 195). In India, farmers are even allowed to sell seed of protected varieties, so Indian legislation fails to comply with UPOV 78 as well as UPOV 91.
– UPOV strengthens breeders’ rights, but misses the big picture that must include food security, development and biodiversity. Coherent legislation must always consider how a regulation will affect other areas. Similar to the WIPO (World Intellectual Property Organisation) ahead of the debate on the Development Agenda discussion, UPOV still assumes that “more protection” always has a positive impact on a national economy. This approach ignores overarching objectives such as the right to food.
– The talks on the 1991 UPOV Act were held by industrial countries and South Africa. The situation and necessities of the global south were not taken into account. Consequently, a protection system was created for the industrialised agricultures of the rich nations, not the poor ones.
– So far, stakeholders are only being involved selectively. So long as, apart from governements, the seed industry is the only stakeholder at the negotiating table, there will never be a well-balanced result. In 2009, UPOV rejected the participation of NGOs and the farmers’ association Via Campesina for political reasons.

In October 2009, Olivier De Schutter presented his new report “The right to food – Seed policies and the right to food: enhancing agrobiodiversity and encouraging innovation” to the UN General Assembly. It demonstrates how patents and variety protection rights can endanger food security and biodiversity. De Schutter also reminded governments of their obligation to respect, protect and fulfil the right to food within the framework of their national seed legislation:
– “States have an obligation to respect existing access to adequate food. The introduction of legislation or other measures which create obstacles to the reliance of farmers on informal seeds systems may violate this obligation, since it would deprive farmers from a means of achieving their livelihood.”
– “States have an obligation to protect the right to food. Thus they should regulate the activities of patent-holders and plant breeders, so as to prevent them from violating the right to food of the farmers depending on those inputs in order to be able to continue to farm.”
– “States have an obligation to fulfil the right to food, by pro-actively strengthening peoples access to and utilisation of resources and means to ensure their livelihoods.”

De Schutter points out the dangers, but also the opportunities of facing these risks:
– Most countries have been led to adopt UPOV-compliant domestic legislation, without taking into account the need of the countries concerned or, for instance, differentiating between crops. States should prepare right-to-food impact assessments in order to ensure that the IPRs which will be chosen will correspond to their development needs.
– The oligopolistic structure of the input providers market may result in poor farmers being deprived of access to seeds productive resources essential for their livelihoods and it could raise the price of food, thus making food less affordable for the poorest. States should consider using antitrust legislation.
– One means to restore an adequate balance between the right of plant breeders and the needs of farmers is by strengthening the protection of farmers’ rights under domestic and international law. This challenge can be met by actively involving farmers in the design and implementation of seed policies.
– IPRs reward and encourage standardisation and homogenity, when what should be rewarded is agrobiodiversity. (…) The strengthening of breeders rights in the 1991 UPOV Convention is also a concern in this regard.